Filibuster Abuse

Over the last decade, Senate procedures have increasingly been used to prevent decision-making rather than to promote deliberation and debate. The threat of a filibuster – coupled with a 60-vote requirement to force any sub­stantive vote – has affected nearly every action in the Senate during the last several years, under both Republican and Democratic majorities. As a result, the Senate has effectively ceased operating as the majoritarian institution our founders intended for it to be.

Fortunately, the Senate’s Committee on Rules and Administration has held a series of hear­ings this year examining the filibuster’s history, its current impact on the functioning of the Senate, and proposals for reform. In addition to testifying in person at one of these hearings, the Brennan Center submitted four sets of written testimony. These are reproduced in edited versions in this report, which tries to illumi­nate the extent of dysfunction in today’s Senate and the ways our democracy is suffering as a result.

Foreword

When the history of the 111th Congress is written, the inability of the Senate to function as the deliberative body envisioned by the Founders will be at the center of any analysis. Time and again, the Senate failed to vote – or even deliberate – on bills that could address the serious issues facing our nation. Presidential appointees, federal judicial nominees, legislation addressing unemployment benefits, the environment, dis­closure of political campaign contributions, and myriad other critical issues have been stalled or shelved. Why? Because the arcane rules of Senate procedure have repeatedly prevented crucial issues like these from reaching the Senate floor.

In recent years, a minority of senators have used these rules to engage in relentless obstruction, imposing a de facto 60-vote requirement for all Senate business that brings the body far from its constitutional ideal. (As explained in the pages that follow, the Framers of our Constitution clearly did not intend for 60 votes to be the norm.) We are caught in a procedural arms race where stalemate often results. What has been ac­complished has been riddled with unprincipled concessions to appease filibustering senators that distend the final product.

The current situation is simply unsupportable. There can be no doubt that the anger and frustration ex­pressed by so many Americans about the inability of government to make their lives better can be directly attributed to the Senate’s repeated failure to act. To cite just one example, the DISCLOSE Act garnered strong public support, won the vote of 59 senators, but could not become law. No wonder that recent polls show that just 21% of Americans approve of how Congress is doing its job.[1]

The Brennan Center has not previously studied the filibuster or Senate procedure, and took no part in earlier debates about its use and abuse. We write at a time when control of the body by one party is diminished, and when no one knows who will have the majority two years from now. Now, when the partisan implica­tion of filibuster reform is unclear, is the ideal time to modernize Senate rules. For whichever party wields the gavel, our democracy is ill served by a Senate that is tangled in obsolete and easily-abused rules of its own making.

The Brennan Center has studied the history of the filibuster, and has examined in depth earlier efforts to change the Senate Rules in order to facilitate legislative action. This report summarizes our findings. We set forth in great detail the harms caused by the effective requirement for 60 votes imposed every time a filibuster is threatened. The report also describes the problems resulting from the abuse of “holds,” another obstructionist tactic. Most important, the report suggests a plan to change the Senate’s rules at the begin­ning of the next Congress, a plan that presents an opportunity to end the partisan gridlock and restore the Senate’s role in our democracy.

Only the Senate itself has the power to repair this aspect of our broken system. For the sake of our democ­racy, we urge the Senate to address the current state of dysfunction by amending its rules at the beginning of the next Congress. Our democracy and our citizens deserve no less.

About the Authors

Mimi Murray Digby Marziani serves as counsel for the Brennan Center’s Democracy Program where her work focuses on money in politics and legislative dysfunction. In this role, Ms. Marziani litigates campaign finance cases, plays an active role in the Brennan Center’s policy advocacy efforts concerning money in politics, and leads the Center’s filibuster reform efforts. As an expert on the filibuster and campaign finance reform, Ms. Marziani has contributed opinion editorials to U.S. News and World Report, The National Law Journal, Politico, The New York Law Journal, among others, and has been a featured speaker in a range of academic, media and political forums. Ms. Marziani also serves as an NYU adjunct professor, teaching undergraduate students about the Constitution and public policy at NYU’s Wagner School of Public Service. She is an honors graduate of Vanderbilt University and NYU School of Law, and a member of the Bar of New York.

Susan Liss is the Director of the Democracy Program, supervising the Center’s work on Voting Rights and Elections, the Right to Vote, Money and Politics, Fair and Independent Courts, Census and Redistricting, and New York State Government Accountability. In her 30-plus year legal career, Ms. Liss has worked for a number of constitutional, civil rights and women’s organizations. During the Clinton-Gore administration, she served at the Department of Justice as Deputy Assistant Attorney General for Policy Development and as Chief of Staff and Counselor in the Civil Rights Division. She also served as Chief of Staff to Mrs. Gore and Special Counsel to the Vice President. Prior to joining the Brennan Center, she was the Director of Federal Relations for the Commonwealth of Massachusetts. She is an honors graduate of the University of Michigan and Georgetown University Law Center, and a member of the Bar of the District of Columbia.